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Published: Saturday, 12/2/2000

Split apparent in top court

BY RACHEL SMOLKIN
BLADE NATIONAL WRITER

WASHINGTON - The Supreme Court stepped into the disputed presidential election in dramatic fashion yesterday, conducting a civil but intense oral argument in which the nine justices seemed no less divided than the nation itself over how to settle the struggle for Florida's 25 electoral votes.

During an extraordinary 90-minute session, the justices grilled attorneys for Texas Gov. George W. Bush and Vice President Gore over whether the high court should remain embroiled in Florida's ballot controversy.

Some justices, particularly Ruth Bader Ginsburg, voiced support for letting Florida courts resolve whether Mr. Gore can proceed with his request for a manual recount. But others, notably Sandra Day O'Connor, indicated that state courts should play no role because the Constitution and federal law give state legislatures exclusive control over the conduct of state elections.

The historic arguments attracted many federal lawmakers from both parties as well as Washington dignitaries, who helped fill the 250-seat courtroom to a capacity not experienced since the justices ordered President Richard Nixon to turn over the Watergate tapes in 1974.

Inside a hushed chamber, the arguments pitted attorneys for Mr. Bush, who argued that Florida's court violated federal law and the Constitution, against attorneys for Mr. Gore, who countered that Florida's court was fulfilling its obligation to interpret conflicting state laws.

“You probably have to persuade us there's some issue of federal law here; otherwise, why are we acting?'' Justice O'Connor asked Theodore B. Olson, the lead attorney for Mr. Bush.

The Bush legal team contends that justices should reverse the Florida Supreme Court's decision to extend the hand-count deadline from Nov. 14 to Nov. 26, allowing Mr. Bush's 930-vote lead to stand.

The decision is expected to have minimal impact for Mr. Bush because he prevailed in Florida after both recounts. But a decision against Mr. Gore could dim his chances in several legal challenges. And it could further dampen public support for the Vice President in his bid to wrest the closest election in more than 100 years from an opponent who virtually has declared victory and is moving aggressively forward with his transition team.

The justices did not say when they will issue their ruling, although legal experts say a decision is possible early next week.

Mr. Olson argued that the state court violated an 1887 federal law that requires election controversies to be resolved by laws in place before Election Day, and Article II of the U.S. Constitution, which gives state legislatures the power to determine how electors are appointed.

As hundreds of protesters demonstrated outside the court, Justice Ginsburg repeatedly questioned Mr. Olson about the federal court's authority to intervene in Florida's election muddle.

“I do not know of any case where we have impugned a state supreme court the way you are doing in this case,'' she said. “We owe the highest respect to the state court when it says what the state law is.''

Justice Ginsburg asked Mr. Olson whether such respect remains paramount even if justices disagree with the Florida court's decision.

“We might have interpreted it differently, but we are not the arbiters, they are,'' she said.

Justices grilled Laurence H. Tribe, the Harvard attorney arguing for Mr. Gore. Mr. Tribe contended that Florida's high court acted properly by applying “garden variety principles'' of judicial interpretation to resolve conflicting and unclear state laws.

But Justice O'Connor expressed concern about the Florida court's remedy to alter the state's deadline for certifying votes.

“It just does look like a very dramatic change made by the Florida court,'' she said.

Chief Justice William H. Rehnquist and Justice Antonin Scalia suggested that the Supreme Court would have authority over Florida's court if the lower court improperly relied on the state constitution to remedy the dispute over electors. The chief justice Rehnquist cited legal precedent that state constitutions cannot remove or modify legislatures' constitutional power to choose electors.

“I read the Florida court's opinion as quite clearly saying, having determined what the legislative intent was, we find that our state constitution trumps that legislative intent,'' Mr. Scalia said. “I don't think there's any other way to read it. And that is a real problem, it seems to me, under Article II,'' which grants state legislatures authority in choosing electors.

Mr. Tribe said the federal law that prescribes using state laws enacted before Election Day to decide election outcomes does not impose any requirements on states, but merely shields states from congressional challenges to their chosen electors.

“Although it is part of the popular culture to talk about how unfair it is to change the rules of the game, I think that misses the point when the game is over, and when it's over in a kind of photo finish that leaves people unsure who won,'' Mr. Tribe said.

Confronted with a challenge to a state's electors, Congress can examine a state's adherence to the federal law as one way to determine the proper outcome, Mr. Tribe said. He suggested the appropriate venue for resolving the Florida conflict is the Congress, not the Supreme Court.

Chief Justice Rehnquist asked Mr. Tribe if that means the courts could review a potential congressional decision to count one set of electoral votes over another.

“No, I don't think so, Mr. Chief Justice,'' Mr. Tribe replied. “It's just that I don't trust my own imagination to have exhausted all possibilities.''

The 19th century federal law at the core of both sides' arguments was enacted to prevent a recurrence of the 1876 presidential election between Republican Ohio Governor Rutherford B. Hayes and Democratic New York Governor Samuel Tilden, a contest tainted by accusations of voter fraud and corruption.

Congress debated for a decade over the best way to avoid repeating an outcome that infuriated Southern Democrats and eventually enacted the 1887 federal law with the help of Rep. William C. Cooper, an Ohio Republican.

“The partisan struggle in Florida today is precisely the kind of chaotic situation that would have been avoided by adherence to the statutory deadline,'' Mr. Olson said in papers filed with the court.

The justices made several concessions for unprecedented arguments over a presidential election's fate, extending the usual 60-minute time limit for oral arguments to 90 minutes.

“Is there any respect in which this really makes a difference in this case?'' Justice Stephen Breyer asked. “If it does make a difference, in numbers of votes, is that kind of thing right for us to decide now?''

The Washington Post and Houston Chronicle contributed to this report.



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